Phyllis L. Black, Complainant,v.John W. Snow, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionNov 29, 2004
01a44542_r (E.E.O.C. Nov. 29, 2004)

01a44542_r

11-29-2004

Phyllis L. Black, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.


Phyllis L. Black v. Department of the Treasury

01A44542

November 29, 2004

.

Phyllis L. Black,

Complainant,

v.

John W. Snow,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A44542

Agency No. 04-2152

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated May 27, 2004, dismissing her formal complaint of

unlawful employment discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

On December 24, 2003, complainant filed a formal complaint, claiming

that she was the victim of unlawful employment discrimination in reprisal

for prior protected activity.

In its May 27, 2004 final decision, the agency determined that complainant

sought EEO counseling on October 10, 2003. The agency further determined

that the instant complaint was comprised of the claim that complainant

was subjected to discrimination in reprisal for prior EEO activity when:

During Mid 2001, complainant was asked by the Acting Department Manager

to return to the Collection Division for a detail beginning in August

2001, and ending in October 2001;

During September 2002, she did not receive an annual performance award;

From February 2002 through February 2003, she had five weeks of classroom

training, despite being advised that she would be trained by job coaches

for one year; and as result, she was not properly trained;

As result of not being properly trained, her manager wrote her up on

several occasions for poor performance;

During her training phase, her manager assigned her 12 to 15 cases at a

time, even though she was aware complainant had an inventory that was

beginning to overage because of the unreasonable amount of inventory

being assigned to her;

During 2003, her manager put her inventory into a large cart and made

her push the cart from room to room in an attempt to embarrass her in

front of her peers;

During August 2003, she was denied installment training;

During 2003, two employees within her work group received awards and

she did not;

During 2003, she received an unacceptable appraisal rating which does

not accurately reflect her performance;

During September and October 2003, she was denied the opportunity to

work overtime;

During 2003, complainant was assigned to perform collection work while two

other employees within her same grade/series were given clerical duties;

During October 2003, employees were given an opportunity to be reassigned

during the reorganization, to the Collection or the Examination Division;

however, when she volunteered for a reassignment to the Collection

Division, she was denied a position; and

She was blacklisted by management because, when she was an EEO Counselor

in 1985, she forwarded a 30-day letter to a group of employees.

The agency dismissed complainant's claims (1), (2), (3) and (7) pursuant

to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact, and

claims (4) - (6) and (8) - (13) pursuant to 29 C.F.R. � 1614.107(a)(7),

for failure to cooperate. The agency's decision indicated that an EEO

specialist had made numerous attempts to contact complainant for an

explanation as to the timeliness of her EEO contact for claims (1), (2),

(3) and (7), and to obtain other information concerning claims (4) -

(6) and (8) - (13). Specifically, the agency stated that it attempted

to contact complainant to obtain information in writing on January 16,

21, 23, and 26, 2004; and by telephone on five occasions from February

5 through March 5, 2004. The agency also stated that a final attempt

to secure information was made on April 8, 2004, by certified mail,

indicating complainant had fifteen days to respond or face dismissal

of the complaint. The agency determined that complainant received the

April 8, 2004 letter on April 21, 2004, but had not responded to the

letter, or any other request for information. The agency thus determined

that complainant's October 10, 2003 EEO Counselor contact was more

than forty-five days after the dates of incident for claims (1), (2),

(3), and (7); and that her EEO Counselor contact for those claims was

therefore untimely. The agency also found, that complainant had failed

to provide requested information with regard to claims (4) - (6) and (8) -

(13), and that the record was insufficient to adjudicate those claims.

The record reflects that, on February 5, 2004, complainant sent

by facsimile transmission, a seven-page hand-written letter,

with attachments, to the agency EEO Specialist in response to her

January 16, 2004 request for information. In the letter, complainant

stated that she received the �e-mail� request on January 21, 2004,

and attempted to call the EEO Specialist on February 4 and 5, 2004.

In her specific responses to the agency's questions, complainant stated,

while discussing the denial of an award �in late Sept or early Oct,� that

she �contacted the EEO as early [as] Sept, but had to wait until someone

was assigned to me.� Complainant also stated that awards were given out

�in Oct. of each year� or �[s]ometimes Sept.,� and that she �addressed

EEO before 45 days had expired.� We also note that, concerning claim

(1), complainant's response maintained that she was asked to return to

the Collection Division for a detail from August through October 2002,

and not in 2001, as stated in the agency's final decision.

The Commission first determines, with regard to claims (1), (2), (3),

and (7), that there is insufficient evidence of record to determine

whether complainant made timely EEO Counselor contact. In its final

decision, the agency determined that complainant's EEO Counselor contact

was on October 10, 2003; however, there is no evidence in the record

addressing complainant's February 5, 2004 contentions of prior contact.

Moreover, it is unclear whether complainant's statements concerning

her EEO Counselor contact relate to a 2002 (claim (2)) or a 2003 (claim

(8)) award denial claim, and it is unclear how her EEO contact relates to

complainant's asserted incident dates in claim (1). Complainant provides

some specific information concerning her claimed EEO contact prior to

October 10, 2003; however, she has provided no evidence for the record

to substantiate her assertions. Consequently, we remand claims (1),

(2), (3), and (7) to the agency to supplement the record with evidence

of when complainant made EEO Counselor contact, and to clarify the date

of incident for claim (1).

EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides for the dismissal

of a complaint where the agency has provided the complainant with a

written request to provide relevant information or otherwise proceed

with the complaint, and the complainant has failed to respond to the

request within 15 days of its receipt or the complainant's response does

not address the agency's request, provided that the request included a

notice of the proposed dismissal. The regulation further provides that,

instead of dismissing for failure to cooperate, the complaint may be

adjudicated if sufficient information for that purpose is available.

The Commission has also held that such dismissal is applicable only in

cases where there is a clear record of delay or contumacious conduct by

the complainant. See Magdalene Anderson v. United States Postal Service,

EEOC Request No. 05940850 (February 24, 1995)

We also find that the improperly dismissed claims (4) - (6) and (8) - (13)

, based on complainant's failure to respond to requests for information.

First, we find that the agency has not shown that the complaint

could not be adjudicated without further information from complainant.

The record indicates that most, if not all, of the information requested

of complainant was provided in the EEO Counselor's Report and in the

extensive seven-page hand-written letter, with attachments, sent by

complainant to the agency on February 5, 2004. Moreover, as evidenced

by that response, the agency incorrectly found that complainant did

not respond to any of its inquiries, and thus failed to establish that

complainant engaged in delay or contumacious conduct sufficient to warrant

dismissal of the complaint. We therefore determine that claims (4) -

(6) and (8) - (13) were improperly dismissed for failure to cooperate

pursuant to 29 C.F.R. � 1614.107(a)(7).<1>

Accordingly, the agency's decision to dismiss claims (1), (2), (3), and

(7) for untimely EEO contact is VACATED. The agency's decision dismissing

claims (4) - (6) and (8) - (13) for failure to cooperate is REVERSED.

The complaint is hereby REMANDED to the agency for further processing

in accordance with this decision and the ORDER below.

ORDER

The agency is ORDERED to take the following actions:

1. Within fifteen (15) calendar days of the date this decision becomes

final, the agency shall undertake a supplemental investigation to

determine the date of complainant's EEO Counselor contact, and to clarify

the dates of incident for claim (1). The agency shall supplement the

record with any relevant documentation obtained as a result of its

investigation, specifically including affidavits from complainant,

complainant's EEO Counselor, and any other relevant EEO and Human

Resources personnel. Within thirty (30) calendar days of the date

this decision becomes final, the agency shall either issue a notice of

processing or a final decision, pursuant to 29 C.F.R. � 1614.107(b).

2. The agency is ordered to process claims (4) - (6) and (8) - (13) in

accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's notice of processing and determination pursuant

to 29 C.F.R. � 1614.107(b), if applicable, regarding claims (1), (2),

(3), and (7), as well as a copy of the agency's letter of acknowledgment

to complainant and a copy of the notice that transmits the investigative

file and notice of rights regarding claims (4)-(6) and (8)-(13) must be

sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION

(R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. If you file a civil action, you must name as the defendant in

the complaint the person who is the official agency head or department

head, identifying that person by his or her full name and official title.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 29, 2004

__________________

Date

1The Commission nonetheless advises complainant

to cooperate with the agency in the continued processing of the instant

complaint, or face a possible future dismissal of the complaint.